The past 40 years have seen the introduction of statutes and regulations addressing discrimination in the fields of sex and race, disability, sexual orientation, religion or belief and age. There has also grown up around this legislation a complex and multi-faceted body of case law. In February 2005, the Labour Government announced a Discrimination Law Review to consider the opportunities for a clearer and more streamlined discrimination law framework. In June 2007 the Government published proposals to introduce a single Equality Act with the (rather ambitious) objectives of modernising, harmonising and simplifying the law on discrimination and making it more effective. The Equality Act 2010 received Royal Assent on 8 April 2010 after a somewhat hasty push to get the Act onto the statute books before the end of the last Parliament. The current Coalition Government has already indicated that it intends to take a different approach to the implementation of the Act than its predecessor.
The Act contains 218 sections and 28 Schedules and is accompanied by 216 pages of explanatory notes. In this article, I will try to give you an overview of the Act’s impact and key changes in the employment field alone (although the Act does affect other areas of public life).
The Equality Act sets out a total of 9 fields where discrimination is prohibited, which it calls “Protected Characteristics”. These are:
- Sexual Orientation;
- Pregnancy and/or maternity leave;
- Marital and/or civil partnership; and
- Gender reassignment.
Broadly speaking, the Act sets out the same approach to discrimination in respect of all of the Protected Characteristics. I mention a couple of exceptions towards the end of this article.
TYPES OF DISCRIMINATION
The types of discrimination that the Act prohibits generally mirror previous legislation but with a more harmonised approach to their definitions. These are:
direct discrimination – treating an employee less favourably because of a protected characteristic;
indirect discrimination - applying to an employee a provision, criterion or practice (“PCP”) which puts both that employee and other employees who have that protected characteristic at a particular disadvantage when compared with employees who do not have that characteristic;
harassment – engaging in unwanted conduct related to a protected characteristic (excluding pregnancy and maternity leave or marital and civil partnership) which has the purpose or effect of violating the employee’s dignity, or creating an intimidating, hostile, degrading, humiliating or offensive environment for the employee. There are also separate definitions of harassment relating to:
- unwanted conduct of a sexual nature or that is related to gender reassignment or sex; and
- less favourable treatment because of a rejection or refusal to submit to such unwanted conduct;
victimisation – treating an employee less favourably because they have (or the employer believes they have) made an allegation that there has been an act of discrimination or harassment, given evidence in relation to such an allegation or issued proceedings under the Act.
EFFECT OF CHANGES TO DEFINITIONS
The words, “because of” in the definition of direct discrimination above replace “on the grounds of”. This change will widen the scope of discrimination by association and discrimination by perception. This means that for all protected characteristics except marriage and civil partnership, it will be unlawful to directly discriminate because you believe an employee has a particular characteristic or because they are associated with someone who has a characteristic (eg discriminating against an employee who is not disabled but who cares for a disabled relative).
Unlike with the other protected characteristics, extending protection to those who are mistakenly believed to be disabled is a significant change to the previous position, where an employee had to demonstrate an actual disability to be protected. It will be interesting to see how tribunals deal with the new position.
The definition of indirect discrimination has been harmonised across protected characteristics, as has the definition of objective justification, where employers can avoid liability for indirect discrimination by being able to objectively justify the relevant PCP by satisfying a tribunal that the PCP is a proportionate means of achieving a legitimate aim.
The only protected characteristic where direct discrimination may be objectively justified is age.
The main change relating to harassment has been the extension of the third party “three strikes rule” that previously only applied to sex discrimination to all of the other protected characteristics. Under the new rules if an employee complains about three separate instances of harassment by a third party (not necessarily the same person each time) and the employer fails to take action after either of the first two incidents are brought to its attention, then by the “third strike” the employer will be vicariously liable for the harassment suffered by the employee. One other important change is that, as with direct discrimination, harassment based on association and perception will now be prohibited.
Although its main aim is the harmonisation and simplification of discrimination law, the Act introduces a few new concepts. These include:
This involves employees bringing claims because they believe they have been directly discriminated against because of a combination of two protected characteristics. The Act’s explanatory notes give the example of an employer who believes that black women do not perform well in customer service roles and therefore passes over a black female employee for promotion to work on reception. If, in that situation the employer can point to a white woman and a black man, both of equivalent qualifications and experience who had been appointed to the role in question, the woman may need to be able to compare her treatment because of race and sex combined to demonstrate that she has been unlawfully discriminated against.
This is a potentially interesting development in the field of discrimination and involves a number of technical difficulties that unfortunately I don’t have the space to address. However, this part of the Act has not yet been implemented and, at the time of writing, the Coalition Government has not committed to bringing it into force by the original proposed date of April 2011.
The concept of indirect discrimination has been introduced to the field of disability discrimination for the first time. There are likely to be difficulties in identifying a particular group of disabled people with the same “characteristic” (Must they have the same degree of impairment? The same underlying cause?). In part to address this issue, a new type of discrimination has been introduced whereby a disabled employee will be discriminated against if someone treats them unfavourably “because of something arising in consequence of their disability” (and this less favourable treatment cannot be objectively justified). This is intended to make it easier for disabled people to show that they have been treated less favourably because of their disability. I suspect that in practice that any employee who issues a claim for indirect disability discrimination will also sue for this new “discrimination arising from a disability” at the same time.
Pay secrecy, gender pay gap reporting and public sector duties
Employers are not prevented in all circumstances from having rules or policies that prevent their employees discussing their pay. However, any such rule or policy is unenforceable to the extent that it purports or seeks to prevent employees from discussing pay with their colleagues (including former colleagues) if the reason for the discussion is to allow the employees to find out whether or to what extent there is any pay imbalance that is connected with having a protected characteristic. The likely legal battleground in this area will be the issue of whether a particular conversation was for the purpose protected by the Act.
The previous Government had also intended that businesses with 250 or more employees would have to publish information relating to their employees’ pay. However, it appears that the Coalition Government does not intend to implement this part of the Act (as long as the Conservatives have their way).
At the end of November 2010, the Coalition Government also announced that it did not intend to implement a proposed wider obligation on public sector employers to make strategic decisions with due regard to the desirability of reducing the impact of socio-economic disadvantage.
Before the Act, training could be provided to under-represented groups to encourage the take up of jobs in a particular area. Positive discrimination (for instance promoting an employee because they have a protected characteristic) was unlawful. The Act has not radically changed this position, but it is now permitted (but not compulsory) to take under-representation of particular groups into account when selecting between two equally-qualified candidates for recruitment or promotion.
Businesses are prohibited from asking about the health of job applicants before either making a job offer or creating a pool for selection. Employees can’t enforce this right directly but must ask the Equality and Human Rights Commission to take action on their behalf. However, employers can ask about health for the purpose of determining if reasonable adjustments are necessary and (more controversially) to establish if the employee can carry out “a function that is intrinsic to carry out the work concerned”. Precisely to what extent this allows employers to make such enquiries is not clear. For now at least, I would certainly recommend erring on the side of caution.
Tribunals’ enforcement powers
When a discrimination claim is successful, employment tribunals will now have the power to make recommendation as to what steps the business should take to reduce the adverse effect of the discrimination on the claimant or any other person. It will be interesting to see the extent to which tribunals choose to exercise this new power and whether such recommendations will have any practical effect. Perhaps crucially, tribunals have no enforcement powers if an employer doesn’t implement their recommendations.
For such a substantial piece of legislation, there is not likely to be much of an immediate impact on the way that most employers conduct their business (except probably in the case of health-related questions during recruitment). Perhaps this is not surprising given that the Act is intended mainly to simplify and streamline existing law. Ironically, in respect of the new grounds for disability discrimination and (if introduced) the new dual discrimination claims, at least in the near future are likely to lead to more complication in tribunal claims.
This article first appeared in the January – March 2011 edition of the Milton Keynes and North Bucks Chamber of Commerce’s Vision Magazine